ATCHLEY v. CALIFORNIA

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Argument of Rosalie S. Asher

Chief Justice Earl Warren: Number 95, Veron Atchley, also known as Jack Atchley, Petitioner, versus California.

Ms. Asher.

Ms Rosalie S. Asher: Mr. Chief Justice, may it please the Court.

Before embarking appointed discussion of the case in its merits, I should like to correct a misstatement or an ambiguity appearing in our reply to respondent's brief.

At page 9 in discussing the case of Ziang Sung Wan versus United States, it might appear that we argue that later cases require a Fifth Amendment to be made applicable to state prosecutions.

Counsels are aware that such is not the rule.

We are aware of Twining versus New Jersey and Adamson versus California.

We can only apologize and explain that this error resulted when as a -- the matter -- as a result of the matter and the haste of which the response was necessarily prepared, the argument was not fully developed.

What should have been further stated is that without claiming that the Fifth Amendment operates to restrict the State of California, we do maintain that all of the factors in this case must be considered in their totality to determine whether or not, this petitioner has been deprived of his rights under the Fourteenth Amendment and that the mere absence or presence of threats or promises standing alone is not determinative of the fact as to whether or not the confession was coerced.

The voluntariness of that confession is the crux of this case, in determining which all relevant factors are to be examined.

There is a personal experience in stature of the defendant.

There is trickery and connivance in securing his tape recorded confession.

There is secrecy as well.

The defendant's repeated request for counsel having been denied.

All of these are methods, which history tells us, were involved during the inquisition, when the inquisitors demanded as the State would appear to demand for the police in this case, he completely freehand.

These techniques have survived in authoritarian countries today where setting neighbor, to spy upon neighbor is not uncommon.

And just so, as will be demonstrated, did the State set Mr. Travers to engage in conduct which is a kin to spying.

We know from Chambers versus Florida and countless other cases that lawless means, irrespective of their ends, are not necessary to uphold the laws and are forbidden by the Constitution.

Such practices likewise are inimitable to the accusatorial system, which many cases, including Watts versus Indiana and as recently as Rogers versus Richmond, have declared to be the law of the land under our Constitution.

Jack Atchley is not really the primary concern in this case.

Men have been executed before him on their own confession for homicide.

Doubt was more of a follow.

But the vital consideration is the Constitution and whether under the Fourteenth Amendment, these confessions have been honestly secured.

If this requirement is satisfied, no state conviction will be challenged, for no one condones murder and were all agreed that one who takes a life may not go free.

But very naturally is to be executed in the name of justice and justice, as it has delineated for the States by the Due Process Clause, is not satisfied, if he be executed upon his own confession, say that confession be honestly, freely, openly and voluntarily secured.

As this Court knows, the criterion has been stated in countless ways.

One being that a confession must be the product of a defendant's freewill.

Freewill is a concept troublesome, I think, to philosophers as well as to jurists.

And it's probably alludes in all embracing definition, but neither philosophically nor legally, it is submitted can it be said that a man is exercising his freewill, making a free choice, either to confess or to deny when, because he has duked and deceived, he is not aware that he is confessing.

Justice John M. Harlan: Could I ask you a question?

Ms Rosalie S. Asher: Certainly, Mr. Justice Harlan.

Justice John M. Harlan: Was -- was this episode before or after the defendant's arraignment?

Ms Rosalie S. Asher: My recollection is that it was prior to arraignment.

However, I would like to confer with counsel who tried the case.

Justice John M. Harlan: Prior to what?

Ms Rosalie S. Asher: It was prior to the arraignment, Your Honor.

Justice John M. Harlan: Prior to the arraignment.

Ms Rosalie S. Asher: We maintain that this confession was not freely self-determined, which is the phrase as the Court knows that -- it is used in it -- most recent confession case.

This was not so much a confession elicited against the freewill of the defendant as one extracted, absent his will.

Briefly, to review for the Court with its permission to salient facts, Atchley had been arrested in the night, detained and questioned.

He had consistently denied in conflicting stories that must be admitted, commission of the crime.

He had several times asked for an attorney that these pleas had gone unheeded.

Then he sent for his -- his friendly insurance agent, Mr. Travers.

They talked.

Upon leaving, Travers was stopped by the undersheriff and asked whether or not he would again interview Atchley and would permit the second conversation to be recorded.

He readily agreed.

Atchley had no knowledge of this.

Travers did not advise him of the inducing -- inducing course of the second conversation, that is to say the request of the undersheriff.

Travers did not mention that a recording was being made.

He did not cautioned Atchley that anything he said might be used against him.

Justice John M. Harlan: Was the substance in the first conversation he has had, the same as the second conversation that was recorded?

Ms Rosalie S. Asher: Your Honor, that cannot be certainly stated.

All that appears in the record is that Mr. Travers' testimony was that the two conversations were substantially the same, they had to come mixed in his mind.

There is no -- as I -- as I have see -- have read the record.

There was no testimony from Mr. Travers as to the complete question and answer of the earlier conversation.

Justice Potter Stewart: Is it true that the -- the tape recording was substantially the same as the -- as the testimony of the petitioner on the trial case?

Ms Rosalie S. Asher: This is in essence, true, but we maintain that -- that doesn't really reach the constitutional issues.

Justice Potter Stewart: No, I just want to know the facts of that.

Ms Rosalie S. Asher: Yes, Your Honor.

Justice Potter Stewart: Are the tape recording in issue is what begins on page 194 of the record?

Ms Rosalie S. Asher: That is correct.

Chief Justice Earl Warren: Had the petitioner made any -- any other incriminatory statement before this statement to this one?

Ms Rosalie S. Asher: He had made several statements conflicting, but none of them which were really incriminatory.

He had attempted to explain his whereabouts, the time of the crime and the commission of the crime.

But up until this time, if memory serves, as this Court is aware, I did not try did case and I'm relying on a rather poor memory.

He had actually denied commission of the crime.

Chief Justice Earl Warren: Well, have he admitted being present at the scene of the death of this -- of his wife before?

Ms Rosalie S. Asher: There were three or four previous interrogations.

Chief Justice Earl Warren: Yes.

Ms Rosalie S. Asher: In some of those, he denied being present at the scene, but in some, he admitted being there.

Chief Justice Earl Warren: And was that -- when he had -- the statement he made concerning his being there, essentially different from what he related to this man?

Ms Rosalie S. Asher: Yes.

In relation to the time when he was there, the time he was on the premises where the homicide occurred and his -- his activities in going a little shed in the back of the house and coming in around the corner as his wife, the decedent, arrived home.

At one time, he gave a different story also as to who had the possession of the gun and keep claiming on one occasion, that she was the one who came armed.

We would call attention to the fact that Travers, who conducted this tape recorded interrogation, was astute, trained and cunning and that Atchley was not his peer in experience with law enforcement and investigational methods.

Although they are strong words, advisedly we will say that here is a conspiracy -- a confession coerced by conspiracy.

A conspiracy to which the State was a party and all the more and wholly because the California constitution commands just as does the Fifth Amendment, that in a criminal case no person shall be compelled to be a witness against himself.

The purpose of this conspiracy seems clear from the record.

It would be exceedingly naive to think that the undersheriff suggested a recorded conversation of any concern for the interest of the suspect, Atchley.

And is a fair inference that Travers too, intended to secure a confession which would in turn secure a conviction.

As will be later more fully developed, he presented himself to Atchley as a friend and not as the agent of the law which he had in fact become.

Now it may be that his original agreement to re-see and re-interview Atchley, standing alone, would not be overwhelming evidence as such an intent, but when we look to the manner of his questioning, whether it was consciously employed or from the habit of his prior conduct of such investigations as a deputy sheriff in Nevada.

It leaves little room for doubt that he became an active agent in furthering the determination of the deputy to secure a conviction.

The questioning teams with leading questions and Travers was very careful to omit no relevant fact concerning a homicide.

Justice Stein versus New York tells us that violence is inherently coercive and of no social value in solving crime, so it is with methods shown here.

Treachery and deceit they submitted are just as employed to society.

As the methods employed in Rochin versus California of innocence of justice, so do these techniques.

In all of the situations, the State has so-conducted its criminal prosecution as to offend the sets of justice and in the end, to deny defendant a fair hearing in substance.

The defendant is as much wronged as where -- as much wronged under the Fourteenth Amendment as where further testimony has knowingly been used to convict.

The question would raised by (Inaudible).

In the one instance, the State has lent -- in both instances, the State has lent itself to deliberate deception, in the one case, a deception of the court and the jury, in the other case, a deception of a defendant.

In neither instance is justice done.

There are impositions upon the individual other than violence which shock the sensibility and offend the conscience.

And the unfairness of the State here acting as of course it must through its agents, it is submitted, is just such an imposition.

We feel that this case much resembles Leyra v. Denno in crucial errors -- areas, even though we will of course concede that in Leyra, the defendant's fatigued much more clearly appeared and that his illness was an additional fact.

As the Court will recall, that was the case where a state-employed psychiatrist by subtle and suggestive methods, continued the efforts of the police to induce the defendant who was without counsel to admit his guilt.

The cases differ in four particulars, but the distinctions if they have any effect, would seem to make the confession here all the more vulnerable.

First in Leyra, the New York court had recognized that the confession had been coerced and by promises of leniency and it was excluded from the jury's consideration, the question coming to this Court being with regard to a subsequent confession.

Here, the confession was placed in evidence.

The tape was played to the jury who were thus exposed to the impact of the defendant's own voice.

As with Omar's Moving Finger, which having rich moved on, not all such piety or wit has very naturally might have had, could ever have wiped out a lion from the minds of the jury.

And then they submitted that from reading -- a reading of the record is rather clearly and pathetically appears that Atchley had neither.

The second distinction is that in Leyra, it was the psychiatrist who -- to -- elicited the confession.

Here, it was the defendant's own insurance agent, a former deputy sheriff.

Just as the doctor uses psychiatric training in bringing out the confession, so did Travers make use of his former training and experience in law enforcement.

Moreover, it was the police who introduced the psychiatrist to Leyra.

Atchley himself had telephoned for Travers and he had no possible way of knowing that Travers was acting at the instigation of the police when he was questioning him.

Whether Leyra was or should have been suspicious and on his guard is beside the point.

Atchley had not the slightest ground even to suspect that Travers had any connection with the State.

He regarded him as his friend, there at his request and presumably, to help him.

Third, the record shows or rather in Leyra, the psychiatrist was on a State's payroll.

Here, for all the record shows, Travers received nothing for his connivance with the officials.

To mention the difference is to destroy it for certainly, due process does not hang by so fine a thread.

Finally, in Leyra, it appears that threats and promises of the sort were made.

However, it does not so clearly appear that coercion -- the coercion which was found to exist, depended upon this fact alone.

As we read the case, it was because the facts were irreconcilable with the defendant's mental freedom to confess or to deny that rendered the confession obnoxious to due process.

And it is submitted very naturally, had no more mental freedom than did Camilo Leyra.

In Spano versus New York, the undeviating intent of the police to secure from the defendant a statement which would convict him was manifested by sympathy falsely aroused.

There Spano, after his arrest, had employed an attorney who counseled him to answer to questions.

Spano followed this advice until Officer Bruno, a friend of his, importuned him into confessing via false stories to Bruno's being in trouble.

But Spano knew that his friend Bruno was a police officer and he knew too that he was making a confession of crime.

Atchley had no such knowledge.

There is one parallel between the cases.

Spano's confession was secured after he had unsuccessfully tried to see his attorney.

The situation does not differ here or Atchley had unsuccessfully sought to contact an attorney.

The ruling in Spano as the Court knows, did not reach the question of whether the confession obtained following indictment in the absence of counsel, must by -- for that reason be excluded.

For it was found the use of the confession was inconsistent with the Fourteenth Amendment, so the fact that Spano may have been indicted, whereas here, Atchley had not been arraigned is of no moment.

There also appears a strong factual similarity to the case of Malinski versus New York.

There, the claim of physical violence was rejected and it was also found the record contained no persistent, incessant or grueling question.

But Malinski was held in incommunicado and he was denied the right to see an attorney although he requested one.

And he was permitted to see no friends with one exception, the friend to whom he made confession.

Our position is of course that just as Malinski's confession was a fruit of coercion, so as these petitioners.

We would distinguish Lyons versus --

Chief Justice Earl Warren: Is it your -- is it your position that the petitioner made this statement to Atchley or Ashers, whatever his name was, (Voice Overlap) in confidence or that he made it with the idea that it -- it should be given currency?

Ms Rosalie S. Asher: I would say that he had -- the idea that would be given a limited currency perhaps.

He thought and Travers several times told him, it was for the purposes of being transmitted to the insurance company.

His main purpose in -- in having this discussion with Travers as it appears in the record, was this matter of insurance.

Now, Atchley was not the beneficiary, but he was attempting to arrange the insurance claims to the one man who would handle these things for him.

Now, it cannot be denied that he knew that this was to go to the insurance company.

That we say that it is the -- the lack of caution, a cautionary warning of some sort by Travers stands on a far different basis then would be the fact, if this were one of the undersheriffs or the district attorney, deputy as to whom Travers or Atchley had been discussing the matter.

In that case, he would -- I think almost be presumed to know that anything he said would be used in subsequent court proceedings.

Here, I think it -- it's a very fair inference that he had no knowledge, that his conversation with Travers would be used as it was.

Justice William J. Brennan: But do I correctly understand though that Mr. Travers testified that when -- when he first interviewed Atchley 10 o'clock that morning interview, that Travers volunteered everything which subsequently, than appeared in the tape recording.

Ms Rosalie S. Asher: That is correct Mr. Justice Brennan.

I believe the record does show that the first conversation as to which there is -- I pointed out and was no direct evidence.

At that time, Atchley volunteered the information.

Justice William J. Brennan: Well now, I -- if you already suggested to the Chief Justice that the -- he had an impression of a limited circulation, namely that Travers was taking a report for the insurance company.

Ms Rosalie S. Asher: This is true.

Justice William J. Brennan: But there wasn't any suggestion at any time either the first or second interview by Travers was there to Atchley that this would be the only use made of the statement?

Ms Rosalie S. Asher: I don't believe that he specifically said that.

However, I think that by doing so, it's an additional act of deceit upon his part, because he knew that he was back there the second time.

At the instance of the authorities, he knew the conversation was being recorded and instead of -- he gave no hint of any of this to Atchley.

Instead he repeated.I think it appears three or four times in the taped conversation, “I have to get all of these for the insurance company.

Come now, give me all the facts.”

In essence is what he told him.

We maintained that he actually drew the defendant's thoughts away from the fact the he might be incriminating himself and direct --

Justice William J. Brennan: Well actually, it was the content of the statement, the substance was exculpatory, it wasn't incriminating, wasn't it?

Ms Rosalie S. Asher: Yet, to a degree, yet it incriminates the -- I think rather clearly appears as to the element of lying in wait and his being upon the premises there.

Chief Justice Earl Warren: Was it -- was it much more incriminating than -- than the statement he made to the authorities even before he has seen this man?

Ms Rosalie S. Asher: Relying again on my recollection, because I certainly do not want to mislead the court.

I believe that it was.

I believe in the element of time particularly.

Chief Justice Earl Warren: A reading from -- on page 1 of the briefs, see the states' brief at -- at page 9, it says, “Petitioner at this time stated he had driven over to Gridley on the night of the shooting, parked his car about one and a half blocks away from his wife's home, entered the premises by a way of the back alley and spent some time in the shed in the rear of the premises.

He felt if his wife saw his car, she would not stop.

When he heard his wife's car come into the carport, he went around the corner of the house and proceeded toward his wife.

His wife had a gun in her hand, which after a struggle went off several times.

He wrestled his gun away and it went off several additional times, by then she was lying on the ground, so he took the gun, drove back to Palermo, buried the gun and concealed the -- concealed the holster.”

Now that was before he had ever -- and that was at afternoon that he asked to see Travers.

Now, is there any substantial -- is -- isn't that as about as incriminating as the -- the story that he did tell Travers?

Ms Rosalie S. Asher: Taking it by bits and pieces perhaps, yet here, if the Court please, he still was resisting, confessing or incriminating himself completely, in this conversation, which you have just read Mr. Chief Justice.

Where there he says that the wife had the gun in her hand, in short that -- now let's see -- I wanted to make sure I'm correct in this argument.

Apparently, from what I -- I have not checked the record in these two moments, but apparently from all that appears in the states brief, his testimony or his statement then was that it was his wife who had the gun.

Chief Justice Earl Warren: Yes.

Ms Rosalie S. Asher: Yes.

Then in his -- his conversations, his tape-recorded conversation with Mr. Travers, Mr. Travers brought out the fact that he, Jack, the -- the defendant -- the petitioner here, was the one who had the gun and that he had -- he had it with him all that evening in the occasion of his two trips to his wife's property.

Chief Justice Earl Warren: But he still claimed that it -- it was accidental, that she tried to take the gun away from him and -- and in the struggle, there was some shots fired and she was accidentally killed.

That was (Inaudible) --

Ms Rosalie S. Asher: That was the essence --

Chief Justice Earl Warren: -- as in the other one also.

Ms Rosalie S. Asher: -- that was the essence of his statement to Travers and it was the essence of the defense.

Chief Justice Earl Warren: Yes.

Ms Rosalie S. Asher: We would distinguish Lyons versus Oklahoma where there, the improper methods had been used to extract a confession.

But the confession was not used at the trial.

Such might have been the case in this instance, if, instead of being bent upon getting this tape-recorded conversation, the prosecution had merely presented the -- Travers' own testimony as to his morning conversation with Atchley.

But they were not intent to do so.

Intent on securing a confession, the police used Travers, as we have shown, the secure one.

The prosecution adopted the fruits of the police zealousness and introduced the confession, the defendant's own voice and words at the trial.

Now, we acknowledge that modern scientific devices and inventions are valuable tools and maybe the instruments are further in justice.

But nevertheless, where there is an impropriety in their use by the same token, the damage to the defendant is magnified.

Reference has already been made to the fact that Travers did not caution Atchley in any way as to the use which could or probably would be made of a statement that he was giving.

And we wish to disclaim any intent here to argue with the rule, his or should be as regarding -- as with regard cautionary instructions from my police officer.

I think as already indicated, we can assume that Atchley knew that he did not have to answer police questions.

And probably that if he did, it would -- they would kidding answers would be used against him.

I would say that the fact the he had given these conflicting and contradictory stories to all of the officers who had questioned him, up to the time that Travers entered the picture would indicate he might've had such knowledge.

But Travers was nothing about officer of the law.

He wore no indicia of office.

He was and so far as he was acting for the undersheriff, he was to Jack Atchley in disguise.

He was one with whom actually who had had business deals.

Atchley had telephoned and asked him to come to the jail.

Travers was the one person he was permitted to see during this time on whom he could rely.

Just as in the Spano case, Bruno's was the one face visible in which he could put some trust, so was Travers to Atchley.

He had requested a lawyer and no doubt would have relied on a lawyer, but no lawyer was permitted.

Justice Potter Stewart: What's the evidence on -- on that point?

I know he -- he testified that he asked to see a lawyer about ten times or something like that.

Ms Rosalie S. Asher: That is correct.

Justice Potter Stewart: And what's -- what was the -- was that controverted?

Ms Rosalie S. Asher: That was not controverted.

Justice Potter Stewart: Did he testify that he has to see a certain lawyer by name?

Ms Rosalie S. Asher: I don't recall his testimony on that point.

He did state in his conversation with Mr. Travers that he had been attempting to see one particular attorney.

Justice Potter Stewart: They've been trying to make arrangements to have one particular attorney represent him is -- is that it?

Ms Rosalie S. Asher: That is correct.

However, I -- I believe his testimony at the trial was broader than that.

I think his words were that he asked everyone he saw for an attorney.

Eight or ten times he asked to -- to get an attorney.

Justice Potter Stewart: This man in his business had -- had employed a --

Ms Rosalie S. Asher: Oh yes --

Justice Potter Stewart: -- lawyer on that?

Ms Rosalie S. Asher: -- unquestionably had.

Justice William J. Brennan: Well did any of the officers who would interrogate him, were they asked when they -- when they (Voice Overlap) --

Ms Rosalie S. Asher: I do not --

Justice William J. Brennan: -- whether it might to be ask for a lawyer.

Ms Rosalie S. Asher: I do not believe that that appears in the record.

Chief Justice Earl Warren: Did he -- did he ask Travers to try to get a lawyer for him?

Ms Rosalie S. Asher: Insofar as it appears from the tape recording, he did not.

However, he did have Travers as was noted to our response, to make arrangements for the care of the children.

We feel that the authorities in this case took advantage of Travers' friendship with Atchley and have Atchley's reliance upon him.

On the occasion of his first visit, Travers was just what he seemed to be, but when he returned, he seemed to be something that he was not.

And here in the case, Quartz Company with Ashdown versus Utah, where the defendant knew that the district attorney held that office, where he cautioned her she did not have to answer any questions and where he also told her she was entitled to the services of an attorney.

Chief Justice Earl Warren: Was there anything in the record to -- to indicate whether or not the police heard the first conversation between Travers and the defendant?

Ms Rosalie S. Asher: No, there is nothing in the record.

The evidence on that point is rather meekly.

Mr. Travers' testimony was that as he was terminating the first conversation, the undersheriff stopped him and he told him that they've had this conversation.

It doesn't show actually whether or not he related the substance.

He testified that Atchley had told him all about it.

We believe that this can be -- that this case can be distinguished from the Crooker case, where the defendant had a college education and a law school training and knew of his right to remain silent.

Now, we've already disposed of this matter of knowledge of the right not to answer questions.

Well, Atchley had only a 3rd grade education here.

Had and has.

It also appears from a reading of Crooker that the acclaim of denial of due process or coercion there was based almost on -- did not almost entirely upon the denial of request for counsel.

But here, we are relying on additional factors.

Atchley's limited education, the repeated questioning, his lack of sleep and the fraud practiced upon him by Travers.

Well, this Court found that Crooker had not been imposed -- had not been taken advantage of, they submitted that very face of this record shows that Atchley was the most grievously taken advantage of.

In other standard which has been suggested by some of the cases for determining the voluntariness of a confession is to look through the strength or weakness of the defendant's will or mind and the pressures applied to his power of resistance.

How did this case meet the test?

In our brief, the parties have discussed pro and con, Atchley's business acumen and success.

Yet, perhaps on reflection, this may not be such a weigh consideration of the circumstances of this case.

Atchley wasn't brawl beaten into a confession, by threats or by promises.

He was deceived into a confession he did not know he was making.

He thought he was arranging insurance business.

Theretofore by his own methods, he had resisted the efforts of the authorities to obtain a confession from him.

Once again, Spano comes to mind.

Spano resisted by following to a point.

By following his attorney's advice and refusing to answer questions.

Atchley without the benefit of legal counsel, resisted by giving false and contradictory statements to his questioners.

He consistently resisted up to the time when he was taken in by one who he thought was acting for his best interests.

That is to say he resisted those whom he knew to be against, but yielded to the pressures of one whom he thought was acting for him.

I dare say that any of us regardless of education or worldly success, similarly situated, might be similarly deceived.

But regardless of situation in life, none can breathe easily of confession obtained by these means, maybe used as the basis for a conviction.

And yet in another aspect, it may be the fact that Atchley was unlettered and no hardened experienced criminal, does have relevance.

Being so, he would feel all the more helpless in the situation in which he found himself.

His repeated request for an attorney indicates that he knew he was not capable by himself of coping with the power of state, which was set against him.

That Atchley was then some 40 years old, that his mentality has not really appear, except perhaps inferentially from the testimony as to his limited schooling and the various menial jobs he had held.

This -- this sheds no breaking light on whether or not his confession was voluntary.

As we read the cases when a great weight is given to the youthful age of the defendant as in Payne versus Alabama or to his low mentality as in Fikes, such factors are considered with regard to the defendant's weakness and susceptibility.

In this light, Atchley's lack of education and his never having been -- before been charged with a major crime, do enter into the account.

Weighing Atchley's powers of resistance, as we have said which are indicated rather meekly in the record, against the weight of the fraud which was practiced on him.

It is not so difficult to find coercion is present.

It was not so much that Atchley's power of resistance was overcome as that it was circumvented.

That the net result is the same, the methods are -- is unconscionable and the one case as in the other and both that is submitted work a denial of due process.

Chief Justice Earl Warren: Ms. -- Ms. Asher, you -- you have not mentioned the statement that the petitioner made to the police before he -- he made it to this Travers.

Ms Rosalie S. Asher: Well, I'm --

Chief Justice Earl Warren: Now, are you attacking -- are you attacking that also as being coerced?

Ms Rosalie S. Asher: I -- in the record affords no violence, You Honor, but I say --

Chief Justice Earl Warren: No -- no grounds for attacking that.

Ms Rosalie S. Asher: You're talking about the officer that was there?

Chief Justice Earl Warren: Beg your pardon.

Ms Rosalie S. Asher: Well, there were several statements, but perhaps, Mr. Chief Justice, you refer to statements to Mr. (Inaudible) of the State Department of Investigation and one of the deputy sheriffs.

Chief Justice Earl Warren: I'm speaking of the one that was made around noon on the -- on the same day that he asked for his friend to come.

He made this statement such as I read from the record to you a little while ago.

And -- and then after he made that statement as I -- as I read the brief, he -- he then asked to see his friend Travers.

Now -- or what I'm asking is that -- do you attack the statement that he made before he ever saw Travers?

Ms Rosalie S. Asher: Before doing that, if I may, most respectfully, I would like to say that he had actually requested to see Travers before, but -- and he made his --

Chief Justice Earl Warren: Yes.

Ms Rosalie S. Asher: -- phone call and Travers then arrived subsequently to this conversation to what you would referred.

Chief Justice Earl Warren: Yes.

Ms Rosalie S. Asher: We would attack it, although perhaps not so strongly, on the grounds that still there remains denial of his request for counsel, there still remains the fact that he's been kept sleepless as -- as shown in the record.

Chief Justice Earl Warren: Is that argued in your brief?

Ms Rosalie S. Asher: That point was not reached in the brief though.

Chief Justice Earl Warren: You -- you placed your -- all your emphasis upon this statement made to Travers.

Ms Rosalie S. Asher: This, we have done.

Feeling that if it so completely vitiates the trial, that perhaps in a sense, the other statement was of secondary importance in the light in which we are now examining the case.

Justice Tom C. Clark: Could you give me the page numbers on the counselor's brief?

Ms Rosalie S. Asher: Give me one moment.

Justice Tom C. Clark: You don't have them ready?

Ms Rosalie S. Asher: I think -- I think they're in our responses Mr. Justice Clark and I -- I believe --

Justice Tom C. Clark: No -- no -- I already found them in the brief.

Ms Rosalie S. Asher: I know they appear in one of the briefs, if not in both.

We should also like to consider the case alongside of Blackburn versus Alabama, where the defendant was probably insane and incompetent when he confessed.

Have put differently, his mental illness was one cause of the confession with being involuntary.

Here, having been duked as a result of a conspiracy between Travers and the undersheriff, Atchley's confession was likewise involuntary.

In the one case, it was the mental condition of the defendant created by his own illness, which prevented him from exercising his freewill.

In the other, here, it is the defendant's mental condition as created -- created by the artifice of the State, recognizing as in Blackburn that we are necessarily dealing with probabilities.

It may be that Atchley would still have confessed had he been afforded his -- all of his constitutional safeguards.

Ultimately, this Court of courts will determine the effect of the circumstances of Atchley's freewill.

It is respectfully urged that it may be pertinent to a determination of this fact that repeated interrogation of one who is ignorant of his rights, cut off from his friend and denied the aid of an attorney, may be a coercive technique, if not one of intimidation or of torture.

We feel that the methods here employed are just a sacrificial of human values as were those which were condemned in Blackburn.

The matter of a way to be accorded the decision of California Supreme Court has been -- have been discussed adequately, we believe, in the briefs.

And -- but one short moment will be devoted to it now.

We have noted in our response that in upholding the -- the judgment of conviction, the California court did so impart upon the fact that the defendant had not suggested the recorded statements were untrue.

In addition, as we did not argue in the brief, they held the -- deception practiced upon the defendant was -- was not -- did not render the statements inadmissible for the stated reason that it was not of a type reasonably likely to procure an untrue statement.

It is submitted that the decision of the state court thus shows on its face that it did in fact settle the question of admissibility by giving consideration to the probable truth or falsity of the confession.

A standard, which now appears clearly impermissible, was Rogers versus Richmond.

That being true, the state determination is entitled to little weight here and it remains for this Court on the undisputed facts of record, to weigh the case against the standards of the Fourteenth Amendment and to determine whether or not, this was such a coerced and involuntary confession as to fall without the bounds of due process.

What would be the effect of a formal conviction?

One result would be to lend support to the idea that the police can do no wrong, which in turn would lead to that inquisitorial system without safeguards, which was condemned in Watts versus Indiana.

It would portend the situation that then caused envisage when he said, “It is all right to preserve freedom in constitutions, but when the spirit of freedom has freed from -- fled from the hearts of the people, then the matter is easily enough sacrifice under the law”.

And what if the conviction is struck down because of the mean dues to secure the confession in which it -- in so large part rests?

It will place no undue burdens on the police in the proper and necessary exercise of their functions required for the protection of society.

It will merely enunciate once again the doctrine of Malinski and Spano and Blackburn and other cases.

That the standards of decency established by our Constitution are paramount and that in the end, illegal means are as great key dangers as -- are the miscreants.

It is right to punish crime.

It is necessary, but some methods are more dangerous to society as we know it and more obnoxious to honest men than crime itself.

It is submitted that to condone the methods here used to obtain a confession, is to open the doors to ever widening abuses of constitutionally secured rights.

Wisely as it been said that vigilance is the eternal price of liberty, to reverse because of the method of securing Atchley's confession, would be no innovation, no new encroachment on the powers in the State of California or of any other state, in the supervision of their own criminal proceedings.

It would be but another in a long line of cases, many of them sighted here today, applying a familiar rule, but in the exercise of their powers, the states are constitutionally limited by the provisions of the Fourteenth Amendment.

It would merely delineate one more set of facts, which constitute a type of coercion banned by that amendment.

So far as our research is disclosed, this Court has not yet held in so many words.

But a confession secured by fraud, collusion or trickery, results in fundamental unfairness of equal and dignity with that caused by physical force or psychological coercion.

Some of the language in Lisenba versus California indicates this might be the law.

Of course the facts in -- presented in Lisenba were held to measure up the constitutional standards.

However, we rely here not merely on a different set of facts, which appear from the record.

But we also say that while California may adopt any rule it elect whether or not in conforme with the federal practice, it cannot by doing so foreclose inquiry in this case, as to whether the application of the rule has worked a deprivation of due process.

Our position is that the fraud, collusion and deception here present, militate against -- petitioner's confession being the product of any meaningful act of volition on his part and hence, blocking the fundamental imperatives of justice required by the Fourteenth Amendment.

These methods are more subtle and sophisticated than the brutal use of force present in Brown versus Mississippi.

But no one will argue that the evils at which the Fourteenth Amendment are aimed, are no longer a consequence when confessions are merely not extorted by physical violence, regardless of how they made otherwise the coerced and involuntarily.

Mr. Oetje John Rogge, former Assistant United States Attorney, in his book, "Why Men Confess" points out that the Communists very rarely resort -- resort to physical violence in the extraction of confessions.

He says if they do so, no more frequently than do the police in this country, for the reasons that these methods hadn't been found not necessary and frequently self-defeating.

Spano tells us that the safeguards of the Constitution still obtained against these sophisticated and subtle methods.

Every step in the requirements of criminal procedure has come from the humane feelings of man.

And as man has enlightened, has become more enlightened, laws have gradually changed and modified to conform to the -- to conform to the advancing civilizations.

They have not remained static and immutable.

Mr. Rogge phrases this far better than I.

He says, “The inquisitional system stands in the way of the development of equalitarian societies in the growth of human beings into mature individuals.”

Surely we haven't reached at least one -- reached that stage of civilization, where the methods shown here are apart.

To find that Veron Atchley did not have a fair trial is but to inform to the cases to which we have referred, to extend their rule to a different factual situation and to pronounce once again that our Constitution forbids a foothold to deception, brainwashing and other totalitarian device.

Chief Justice Earl Warren: Mrs. Maier.

Argument of Doris H. Maier

Ms Doris H. Maier: Mr. Chief Justice and may it please the Court.

The questions discussed today are slightly different than the position taken in the petition for certiorari, which was presented to this Court.

We plea that the basic question before this Court is whether petitioner's conviction resulted from the employment of constitutionally impermissible methods by the State's law enforcement officers and hence, whether petitioner was denied due process of law into the Fourteenth Amendment.

In this, the two subsidiary questions, first, was a coerced statement used at or a confession used to this trial and second, was the alleged denial of counsel sufficient to vitiate the state proceedings.

With the Court's permission, I would like to state briefly the facts in this case.

Mrs. Atchley, the petitioner's wife, was shot and killed in her front yard in the early morning hours of August the 3rd, 1958 in Gridley, California.

Previously, she had separated from her husband.

On the evening of August the 2nd, she had taken her daughter and another couple to a dance and was absent from the house.

While she was absent, at about 12:30 that evening, defendant came to the house.

He saw no one was home.

He left.

He searched for another places.

He then returned to her house with a loaded gun in his belt, parked his car a block away from her home and approached the house through the back alley.

He remained in the shed at the side premises for a short period of time and then waited at the back end side of the house until the headlights of her car appeared.

When Mrs. Atchley appeared with her car, she proceeded to the front door of her house with the keys in her hand.

Petitioner stepped around the house and confronted her.

In the next few moments, Mrs. Atchley was shot some six times.

Five empty cartridge cases were found, so close together, to show that the shots had been fired from a gun in approximately the same position.

The victim's clothing indicated that the gun was held at least two feet from the victim at the time of the shooting.

Next door neighbors had been awakened during the course of this practice.

They heard a woman cry.

They observed petitioner in a stooping position shooting toward the ground.

A fence destroyed their view of the body.

They inquired as to what was going on, whereupon petitioner immediately left the scene and went back to his car, secured it and drove away at fast rate of speed.

He returned to his home in Palermo where he concealed the holster and the gun used in the killing.

He then went to bed.

This was approximately 3 a.m.

Meanwhile, the police were notified.

They arrived at the scene and petitioner was contacted.

Chief Justice Earl Warren: We'll recess now --

Ms Doris H. Maier: Yes.

Chief Justice Earl Warren: -- Mrs. Maier.

Print this transcript Transcript: 

Argument of Doris H. Maier

Chief Justice Earl Warren: -- you may continue your argument.

Ms Doris H. Maier: At this point we have reached the scene of the shooting which was 3:07 a.m.

Petitioner was contacted by the police at his home in Palermo at approximately 4 a.m. and brought to the County Jail.

He was first questioned in the County Jail by one officer for a period of approximately two and a half hours.

At that time, petitioner denied being in Gridley having any gun and gave a statement that perhaps someone else had threatened his wife and may have shot her.

Petitioner was not again questioned until 11:30 p.m. on that night August the 3rd.

Chief Justice Earl Warren: 11:30 p.m. at night?

Ms Doris H. Maier: At night.

At that time, an investigator for the State Department of Justice arrived in Oroville.

He introduced himself to the petitioner who knew he was booked for investigation of murder.

There were -- the record shows that there were no promises, threats or inducements made by this officer to the petitioner.

Petitioner told the officer the same story that he had told Mr. Anderson, the first person that had questioned him.

He, however, did admit in this statement that at sometime he had previously threatened his wife.

A subsequent conversation was held with the petitioner by three other officers and the questioning lasted until about 5 a.m. when petitioner went to his cell to sleep.

His story was the same as to the second officer.

At noon on August the 4th after the police had located the gun and holster on the petitioner's premises, they returned to the jail and confronted him with these articles.

They made no threats or promises to him.

And on the contrary when petitioners saw him with these articles, he stated, "I heard you had located the gun."

He then changed his story to the officers, admitted that his first story was false.

He admitted then that he had been in Gridley on the night in question that the gun had gone off as a result of a struggle with his wife for this gun but he's dead at that time that she was in possession of the gun and when she was lying in the ground after having been shot, he took the gun and drove back to Palermo where he buried the gun and concealed the holster.

We would like to call the Court's attention to the fact that petitioner sometime on the day of August 4th was arraigned in the Justice Court at 6 p.m on that day.

Chief Justice Earl Warren: Was that before or after?

Ms Doris H. Maier: This is before the statement to Travers.

The record -- we will also call the Court's attention to the fact that this record before this Court does not show that fact but this is the record of the Justice Court.

Chief Justice Earl Warren: Are the proceedings of the arraignment in the record?

Ms Doris H. Maier: The proceedings on the motion to set aside in the Superior Court are in the record Your Honor, and no question at that time was raised as to any delay in arraignment.

Chief Justice Earl Warren: No, no, I -- what I was interested in though was he advised as to his right to counsel and so forth?

Ms Doris H. Maier: Your Honor, he was but they are not in the record before this Court.

Chief Justice Earl Warren: They're not in the record.

Is there anything to show whether or not at that time he asked for counsel?

Ms Doris H. Maier: Your Honor I do not know whether he was represented at that time by counsel or not.

I was not present in that and we nearly handled the appeal.

He was represented by counsel.

We know what the preliminary examination and the motion to set aside which will be reflected in this record.

Justice William J. Brennan: Well, the arraignment was following the conversation with Travers, though?

Ms Doris H. Maier: No, Your Honor the arraignment was prior to the conversation with Mr. Travers.

Justice William J. Brennan: Is the -- we have and I take it in the breached record here, is the original record here?

Ms Doris H. Maier: The original record I understand is on file, a certified copy of it.

And Your Honor in California, there are two arraignments, one in the Justice Court and one again on the Superior Court after he is held to answer.

You will note in the record before this Court or in the breached record as well the proceedings begin with the motion to set aside the information in the Superior Court, not in the Justice Court where a preliminary examination was held.

Justice William J. Brennan: Well then, when was he brought before the Justice Court?

Ms Doris H. Maier: He was brought before the Justice Court on August the 4th.

Justice Felix Frankfurter: I didn't hear that Ms. --

Ms Doris H. Maier: On August the 4th.

Justice William J. Brennan: And this was before -- what were the dates of the conversations with Travers?

Ms Doris H. Maier: The -- he telephoned Travers on 6 -- at 6 p.m. on August the 4th and his statement with Travers was on August the 5th.

Justice Felix Frankfurter: So then he was arraigned before the Justices' Court before the Travers point of view?

Ms Doris H. Maier: Yes, Your Honor.

Justice Felix Frankfurter: What was the dis -- what disposition?

What was the formal disposition following the arraignment or the result of or in connection with the arraignment of the Justices' Court?

Ms Doris H. Maier: After the arraignment in the Justice --

Justice Felix Frankfurter: Is that a single judge or single judge -- single presiding judge?

Ms Doris H. Maier: Well in the -- the arraignment proceeding there is merely an advice -- in California is merely an advice as to their right.

A date is set for a preliminary examination at that time, a preliminary examination was held in this matter on, I believe August the --

Justice Felix Frankfurter: Before the -- before the superior?

Ms Doris H. Maier: No, not before the superior but before the judges.

If there is sufficient evidence to hold the defendant to answer, then he is held to answer in the Superior Court, the District Attorney files an information there.

Justice Felix Frankfurter: Well, it'd be -- at the Justices' Court -- just one session before it, was it?

Ms Doris H. Maier: One arraignment proceeding.

Justice Felix Frankfurter: One arraignment.

Ms Doris H. Maier: And then at a later date, a preliminary examination is held.

Justice Felix Frankfurter: Before the same Justices?

Ms Doris H. Maier: Before the same Justice.

Justice Felix Frankfurter: And when was that -- pardon me.

When was that in this case?

Ms Doris H. Maier: Your Honor, I could only go by a certified copy of the document.

It is not in the record before this Court.

Justice Felix Frankfurter: Now, when you say he's advised of his rights, what was that include?

Ms Doris H. Maier: His right to counsel, his right to remain silent is normal, advised --

Justice Felix Frankfurter: So that although, that was on the 4th of August?

Ms Doris H. Maier: That was on the 4th of August.

Justice Felix Frankfurter: So that although it isn't in the record in this printed volume, is it?

Ms Doris H. Maier: I understand -- yes, Your Honor.

Now, we are not sure whether it is in the record before the California Supreme Court.

Justice Felix Frankfurter: No, in this printed volume.

Ms Doris H. Maier: No, it's not in that body.

Justice Felix Frankfurter: Well, although it is not here you say that as a matter of local practice, the very function of arraignment before the Justices' Court is to advise him with all his rights?

Ms Doris H. Maier: That is correct.

Justice Felix Frankfurter: Is that what you say?

Ms Doris H. Maier: That is correct.

Chief Justice Earl Warren: That's all it is for, isn't it?

Ms Doris H. Maier: The end to discover whether there is sufficient evidence at that time to hold him to answer the filing of an information, where in the State of California, there is both the proceeding by information or indictment.

The information was the proceeding used in this.

Justice Felix Frankfurter: Well, now --

Chief Justice Earl Warren: Ms. Maier, may I just follow this, I have just more?

We were talking about the arraignment.

I happen to be familiar with it where some of the others do not.

But at the arraignment, they do not determine whether there is probable cause.

Ms Doris H. Maier: No, not at the arraignment.

They -- they sent a date for a subsequent preliminary examination.

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: But I -- I do want to know whether that initial arraignment on the 4th, he was told of his right to including you may have lawyer you wanted?

Ms Doris H. Maier: Yes Your honor.

Justice Felix Frankfurter: Now was -- what -- did he express a desire to have one or would this being a capital case, would one be assigned to him?

Ms Doris H. Maier: Your Honor if he expressed a desire that time for an attorney and he had no funds to secure attorney, then one would have been appointed to represent him.

However, this petitioner as reflected by the record did have funds to hire and did engage his own counsel.

Justice Felix Frankfurter: So there is no and -- were you in the proceedings before the State Supreme Court Ms. Maier?

Ms Doris H. Maier: Yes.

Justice Felix Frankfurter: What was the question -- what was the question -- the issue raised for your Supreme Court that he didn't have a lawyer and that he wasn't properly advised to respond to whatever the extent of the proceedings before the Justices' Court?

Ms Doris H. Maier: No, Your Honor, not that.

The question was raised, if I may explain to you, Your Honor.

The question was raised before the California Supreme Court as to the admissibility of the confession whether his statement that he was in the in this record that I want an attorney and that he didn't get an attorney at that time, whether that affected the introduction of the statement in evidence.

It was not -- no question was raised either in his motion to set aside the information in the California Court or the Supreme Court.

I'm trying.

Justice Felix Frankfurter: I'm a little -- I'm a little confused.

If he was -- if he appeared, if he was arraigned before your Justices' Court on August 4 and that told that he may have a lawyer of his choice and if he doesn't have any fund with which to select the lawyer of his choice, the statement provide to him.

If all of that was made clear to him, then I do not understand why he didn't have a lawyer, select a lawyer or express a desire to have the State select one before him if he was indigent before he ever made the statement to action, to Travers?

Ms Doris H. Maier: Your Honor, the only thing we could infer from the record in this case including his statement to Mr. Travers was that petitioner at that time through his brother was negotiating for various counsel.

You will see in the statement to Travers that he says he is endeavoring to secure a counsel and he's been trying to get several people.

Justice Felix Frankfurter: Well then, would you be good enough to turn as to page 382 of the record?

Oh this is in --

Justice William J. Brennan: Yes, it is.

Justice Felix Frankfurter: Oh, yes.

Yes, 3 -- on page 382.

(Inaudible) Mrs. Maier.

I --

Ms Doris H. Maier: Yes.

Justice Felix Frankfurter: -- was going to trouble you to elucidate from the -- where the new ones when examination with several hours were a couple days, didn't you?

Well, from Saturday all day, no sleep, Saturday night, no sleep, Sunday, no sleep, Sunday night, no sleep until about 4 o'clock.

I presume I went to a pretty good examination.

Am I to infer from that that he was continued -- continuously under interrogation by enforcing officials of California no sleep, is that it?

Am I to infer that that means they kept him from sleep?

Ms Doris H. Maier: No, Your Honor.

In the first place may I explain?

The shooting took place in the early hours of Sunday morning.

Justice Felix Frankfurter: You mean the Sunday following this Saturday?

Ms Doris H. Maier: No, no the Sunday -- he says no sleep Saturday, no -- all day, no sleep Saturday night.

The shooting didn't take place until after that Saturday night.

Justice Felix Frankfurter: Yes.

But -- but the answer is responsive to the question and you went to an examination for several hours.

Did he go through an examination before the shooting?

I don't I don't --

Ms Doris H. Maier: No.

Justice Felix Frankfurter: Well, from Saturday all day.

Ms Doris H. Maier: He's --

Justice Felix Frankfurter: What are you talking about?

Ms Doris H. Maier: Well, he is talking about the fact that on the Saturday, in reading the entire transcript, you will see on the Saturday in question he -- he didn't sleep and he didn't sleep that Saturday night.

Justice Felix Frankfurter: Before the shooting.

Ms Doris H. Maier: Before the shooting.

Justice Felix Frankfurter: But it doesn't tie it up with an examination, does that?

Alright, now go on to the next question.

How many times did you ask for a lawyer, would you say?

I would say I asked for a lawyer 10 times.

And you asked, how many people, well everyone that I've talked to, I'm asking for a lawyer?

Now, would you please comment on that Ms. Maier's?

Ms Doris H. Maier: Yes, I would say he probably -- he may have asked a week.

There is nothing in the record that conflicts with that except his own statement to Travers when he shows he was negotiating through his brother for an attorney.

Justice Felix Frankfurter: But it isn't -- it isn't the claim and is the claim made that he asked public authorities to be allowed to get a lawyer and maybe they blocked him from doing that.

Ms Doris H. Maier: Your Honor, there is nothing in this record that shows that any public authorities blocked him from getting an attorney.

Justice Felix Frankfurter: Alright.

Ms Doris H. Maier: There is no affirmative act disclosed there.

The -- there is no duty on the police to provide counsel with an attorney.

And if he is not indigent and has funds to maintain or update his own counsel, the state court could not appoint counsel to represent him.

Justice Felix Frankfurter: So can we say then that there is out of this case any claim or basis for regret, that here was the defendant unable to apply -- supply himself with a lawyer, frustrated in the desire to do so by officials of the State.

Ms Doris H. Maier: I don't think the facts in this case support that.

Justice Felix Frankfurter: Alright.

Chief Justice Earl Warren: Mrs. Maier, may I get back to the crinology again?

You told us that -- that the petitioner was arraigned before he saw this man Travers.

Now, he made a statement to the authorities before that in which he admitted being at the scene of the crime and saying that he had a scuffle and wife was accidently shot.

Can you tell me what or he was arraigned before that statement or afterwards?

Ms Doris H. Maier: I cannot, Your Honor.

I can only go by a certified copy of the docket of the Justice Court which wouldn't give a date -- a time.

Chief Justice Earl Warren: It was the same date?

Ms Doris H. Maier: Yes, it was.

Justice Tom C. Clark: Could you tell me, what Mr. Gillick did?

Ms Doris H. Maier: I'm sorry I couldn't.

Justice Tom C. Clark: Mr. Gillick?

Ms Doris H. Maier: The Sheriff?

Justice Tom C. Clark: It says here that he saw Mr. Gornall and Gillick, I just wondered who they were?

Ms Doris H. Maier: Well, Gillick is the Sheriff and Mr. Gornall is the Deputy District Attorney.

Justice John M. Harlan: Is this arraignment before the Justices Court on the charge of murder?

Ms Doris H. Maier: Yes.

Justice John M. Harlan: And what is the second arraignment that you refer to as a --

Ms Doris H. Maier: The second arraignment is the arraignment in the Superior Court when an information has been filed which in California is comparable to an indictment.

Justice John M. Harlan: And when was that?

Ms Doris H. Maier: The --

Justice John M. Harlan: In this case.

Ms Doris H. Maier: -- actual date of the information in the Superior Court?

Justice John M. Harlan: Well, the second arraignment that is, and to follow the information of (Inaudible)

Ms Doris H. Maier: The information was filed on August the 19th in the Superior Court.

Justice John M. Harlan: And he was --

Ms Doris H. Maier: And the next proceeding -- at that time, the next proceedings are a motion to set aside that information on August the 29th by his counsel.

Justice John M. Harlan: But he's arraigned -- he was arraigned again following the filing of the information of the 19th of August?

Ms Doris H. Maier: Yes.

Justice Potter Stewart: Ms. Maier, I still don't entirely understand this arraignment as the word that's usually used and apparently is usually used some of the opinions of this Court because it means different things and different stages.

Ms Doris H. Maier: At different stages.

Justice Potter Stewart: As I understand in California, they -- the first arraignment in the Justices' Court is primarily for the purpose of advising the man of his rights, his right to counsel and what else?

Ms Doris H. Maier: His right to counsel, his right not to make any statements that could be held against him, his right to advices him of the complaint filed against him and --

Justice Potter Stewart: And does he -- does he enter a plea at that first arraignment or not?

Ms Doris H. Maier: No, no plea.

Justice Potter Stewart: Plea of guilty or not guilty.

No plea?

Ms Doris H. Maier: No because then he is -- then he is -- a date is set for the preliminary examination at which the prosecution must present reasonable and probable cause to -- on which an information is to be based.

If the magistrate determines as reasonable and probable cause, he holds this defendant to answer, and then an information within the limited time is filed in Supreme Court.

Justice Potter Stewart: And that's filed in the Supereme Court?

You don't --

Ms Doris H. Maier: Yes.

Justice Potter Stewart: -- don't ever have indictments?

Ms Doris H. Maier: Yes it -- but they are both proceedings in California one or the other --

Justice Potter Stewart: One or the other.

Ms Doris H. Maier: -- or alternative.

Justice Potter Stewart: But first on there's an arraignment on the Justices' Court --

Ms Doris H. Maier: Yes.

Justice Potter Stewart: -- at which time he's advised of his rights and a date is set for preliminary hearing?

Ms Doris H. Maier: Yes.

Justice Potter Stewart: And then comes the preliminary hearing at which time it's incumbent upon the prosecution of a prima facie case?

Ms Doris H. Maier: That's true.

Justice Potter Stewart: This is followed by either -- he's bound over there I -- I don't know if you call.

Ms Doris H. Maier: Yes.

Justice Potter Stewart: But -- but he -- and this is followed by an information or and indictment which is filed in the Superior Court at which time there follows another arraignment at which he makes a plea of guilty or not guilty, is that right?

Ms Doris H. Maier: Yes, but with one exception.

If you have an indictment, you do not have the preliminary proceedings.

You would have an indictment returned by the grand jury in the case of where you have the preliminary proceedings, you have an information based on.

Justice Potter Stewart: Always an information on that case advised.

Ms Doris H. Maier: Yes.

Justice Felix Frankfurter: Well, I supposed whether you have an indictment or not, but I don't suppose because I don't know.

Whether you have an indictment or not, does that lie within the choice of the District Attorney?

Ms Doris H. Maier: Yes, Your Honor.

Justice John M. Harlan: Could I ask you one more question?

Are there minutes of the first arraignment, I don't mean in this record but are there --

Ms Doris H. Maier: Yes, we have them with this --

Justice John M. Harlan: Do you have them here?

Ms Doris H. Maier: Yes, certified copy Your Honor if you wish.

Justice Felix Frankfurter: Does the -- does the accused when he gets before at the second -- at the second stage of appearance before the Justices' Court, does the accused may put in a case contradictory to the States case?

Ms Doris H. Maier: Yes, Your Honor he may have presented his defense.

Justice Felix Frankfurter: In this case, was there anything like that done?

Ms Doris H. Maier: I'm sorry Your Honor.

I'm a -- since I'm not familiar, I wasn't present at that time, I understand that he did not but -- I did not.

Justice Felix Frankfurter: And then the Superior Court is nearly -- there was here, proceeding before the Superior Court, were they?

Ms Doris H. Maier: Pardon me.

Justice Felix Frankfurter: There was a proceeding before the Superior Court?

Ms Doris H. Maier: Oh there was a full trial in this matter at which the defendant was fully represented by counsel and he was found guilty of murder in the first degree.

Justice Felix Frankfurter: Well then -- that that's where the trial was?

Ms Doris H. Maier: That's where the trial was.

Justice John M. Harlan: Could I ask you a question?

My Brother Whittaker, said, -- you misunderstood me, the -- my question was, were there minutes taken of the arraignment before the Justices' Court?

Ms Doris H. Maier: No, there are no.

Justice John M. Harlan: (Voice Overlap) of that.

Ms Doris H. Maier: If you mean he reporter's transcript -- of the arraignment proceedings, there normally is not.

There are -- would be and was a reporters' transcript of the proceedings on the holding of the preliminary examination itself.

And that would have been before the California -- could have been before the California Supreme Court had and a question been raised as to that proceeding, insofar as a motion to set aside the information was raised in the Superior Court.

Justice John M. Harlan: In other words, there is nothing in writing by way of minutes in relates to proceedings before the Justices Court?

Ms Doris H. Maier: There's a formal -- the formal minute entry, the formal docket entry of the Justice Court.

Justice John M. Harlan: But no stenographic minutes of that proceeding?

Ms Doris H. Maier: Of the arraignment proceedings, of the -- in the Justice Court, but there would be a stenograph proceeding of the preliminary examination there.

Justice John M. Harlan: At the later provisions?

Ms Doris H. Maier: No, at the -- in the Justice Court.

Justice Charles E. Whittaker: Isn't that here?

Justice John M. Harlan: In the Justice Court, well that's I was trying to --

Ms Doris H. Maier: No, it was not because no question was raised on the appeal as to the validity of the order setting aside of failing to grant the motion to set aside.

Justice John M. Harlan: But have -- have you got in the courtroom, in this courtroom, the minutes of the proceedings before the Justices' Court?

Ms Doris H. Maier: The original one, yes.

There -- I mean I have them -- with me here.

They're not supported this record.

Justice John M. Harlan: Is there any objection to leave them as the court?

Argument of Rosalie S. Asher

Ms Rosalie S. Asher: We have no objection Your Honor.

I would naturally like to examine this.

However, I think it will pour a little light on the question as Ms. Maier has explained.

This -- this first arraignment in the Justices' Court, there are.

These are not stenographic minutes but merely the -- the minute order at entry.

Then there are, although I don't know whether this or has it or not, stenographic notes as to what we referred to in California as the preliminary hearing which follows this first hearing as to which she -- or you have requested the order.

Justice Felix Frankfurter: Ms. Maier, I would -- I for one would like to see if you have available, if you happen to have here the briefs but before your Supreme Court has led to this Justice Traynor's opinion.

Rebuttal of Doris H. Maier

Ms Doris H. Maier: I have my brief, I do not have.

Justice Felix Frankfurter: Alright.

Ms Doris H. Maier: Sorry Your Honor, I do not have a copy of the appellant's brief.

Justice Felix Frankfurter: Would you mind leaving it -- leaving it to the clerk and he'll return to you?The defendant has -- the petitioner has it.

Chief Justice Earl Warren: Do you have your -- your brief before the Supreme Court of California and would you be willing to leave it Ms. --

Ms Doris H. Maier: I'm sorry Your Honor, I did not appear before the Supreme Court.

I don't have a copy of the brief.

We will either leave or deliver one.

Chief Justice Earl Warren: Thank you very much.

Justice John M. Harlan: Well, I --

Justice Felix Frankfurter: Because this case is taking a course of discussion here that I for one do not find reflected in Justice Traynor's opinion.

Ms Doris H. Maier: Your Honor, we might explain it.

Justice Traynor in his opinion and the question presented to the California Supreme Court was whether these statements were admissible in evidence.

The position of the prosecution at that time was that the statements that no proper foundation would have too, would have been light, to admit them because under California up to that law and up to that time, there was no requirement that a statement be voluntary.

We took the position at that time that these statements were not confessions even though we did urge this point that in this particular record, a full and compete foundation was laid as to their voluntary character and it was.

California Court and in Mr. Justice Traynor's opinion found that both whether it was an admission or confession, would have to be voluntary.

Justice Felix Frankfurter: Well three years, I think we -- the opinion of this Court would have to sustain it with that conclusion.

Ms Doris H. Maier: However, we would call this Court's attention to the fact that in this -- at all statements made by this petitioner, the petitioner's statements were attempt, all of them to be exculpatory.

Now, we would --

Justice John M. Harlan: I'm sorry you have to pursue this.

But what I am trying to get at is, you said that if the Justices Court arraignment, the defendant is advised that he has a right to have counsel and he has the right to remain silent, not to make any incriminatory statement.

Now, are there minutes that reflect that kind of advice being given to this man in this case?

Ms Doris H. Maier: Your normal statement in the court, if I may state -- reads as follows Your Honor, this is a normal procedure there.

"Complaint sign, defendant in custody, arraignment held informed of his legal rights."

Now, that's a minute order that you have in most Justices Courts because there are very few of them that have reported transcript of that or reported at that point.

Now, if I may return to the question of why we believe this record shows that the petitioners will to resist, was not over borne in this case.

We have these facts.

Petitioner was 42 years of age.

He was of average intelligence.

He has nothing --

Justice Felix Frankfurter: (Voice Overlap) resist, resist what?

Ms Doris H. Maier: Well, to -- well --

Justice Felix Frankfurter: What was he required to resist here?

Ms Doris H. Maier: That is a little difficult Your Honor because we do not believe that the statements were coerced from him.

We believe that statement he made to Mr. Travers, the first statement was completely voluntary as the record reflects and the second statement, the only difference was the fact that it was taped recorded.

Justice Felix Frankfurter: And he wasn't told?

Ms Doris H. Maier: And he wasn't told that.

And some at many years prior thereto, we do not know how many.

Mr. Travers happened to be a Deputy Sheriff in another State.

Justice Felix Frankfurter: I asked in all innocence, but so much stress was laid by on the fact that Travers had been by this action, Travers has had been a Deputy Sheriff.

Aren't the deputy sheriffs in California normally, technically, scientifically equipped people?

Ms Doris H. Maier: Well, it might depend on the particular county in which that was true.

Justice Felix Frankfurter: But I mean -- that's why I asked.

Is that a --

Ms Doris H. Maier: Under -- in most counties, no.

Justice Potter Stewart: I thought he'd been a deputy sheriff in Nevada, I suppose the (Voice Overlap) --

Ms Doris H. Maier: The record shows that he has been a deputy sheriff of the State of Nevada.

Justice Felix Frankfurter: Well, (Voice Overlap) take notice that in Nevada, they don't have to be scientific.

Ms Doris H. Maier: If I may -- in this case, in these facts in which we would say the case is definitely differentiated between Spano versus New York and Leyra versus Denno.

In this, the questioning that was continued with prior to Mr. Travers' statement, we have a 20-hour space in which petitioner was not questioned by any police officers before he first spoke to Mr. Travers.

At that time, petitioner, according to Mr. Travers' testimony, petitioner volunteered to him the statements of the shooting, the facts arising.

It was only after Mr. Travers left the conversation with petitioner, he'd finished and he was leaving the jail, that he stopped and spoke to the deputy sheriff or into sheriff and they requested that he repeat the statement and have it so that it could be taped.

This, they did.

Now, in most of the cases, previously considered by this Court, we have a situation where the first confessions have been held coerced and/or not presented and a subsequent confession has been later attacked as on the ground that the coercive influences had carried through in effected.

In this case, we have no first confession or incriminating statement.

The first statement made introduce to Travers admittedly is a voluntary one.

Petitioner himself had requested Mr. Travers to come to the jail.

He asked him to come and discussed the question of insurance with him and also to bring him some cigarettes.

Mr. Travers went there in accordance with that request.

We would also note that the record fully support the fact that petitioner at this time apprised thereto was not held incommunicado since the -- the record reflects that his brother had contact with him and did discuss the matter with him.

Chief Justice Earl Warren: Did you say that in his statement -- in his conversation with Mr. Travers, he -- he said that his brother was trying to arrange counsel for him?

Ms Doris H. Maier: Yes, Your Honor.

That is at page --

Chief Justice Earl Warren: Well, no (Voice Overlap) --

Ms Doris H. Maier: I believe it's 354 in the record.

He said in this statement where Mr. Travers asked him about counsel, that he was endeavoring to obtain a person by the name Bocardo in San Jose.

Chief Justice Earl Warren: What page?

Ms Doris H. Maier: I'm trying to find it.

201.

Chief Justice Earl Warren: 201, thank you.

Ms Doris H. Maier: Then the further quest -- point should be noted that petitioner two days later after the statement to Travers, gave another statement to the police officers which was exactly the same as the statement to Travers.

He did not -- this statement was also a free and voluntary on.

I get --

Justice William J. Brennan: Now at that time, had he had a counsel?

Does the record show?

Ms Doris H. Maier: I do not know Your Honor whether he had counsel at that time or not.

Justice William J. Brennan: Because as I understood your crinology, still a week or two before -- I used the term arraigned, in the Superior Court, wasn't it?

Ms Doris H. Maier: Yes, it would be before that.

Justice William J. Brennan: And he's -- he definitely was represented counsel on that occasion?

Ms Doris H. Maier: Oh yes, he was also represented by counsel at the preliminary examination because if you will notice --

Justice William J. Brennan: Now, when was that

?When was that?

Ms Doris H. Maier: The preliminary examination, I assume was August 18.

Justice William J. Brennan: And when is that (Voice Overlap) --

Ms Doris H. Maier: The information was filed on August 19.

Justice William J. Brennan: But the statement given to the officers, identically you suggest in content with that, which she'd given Travers, was given when the 7th or 8th?

Ms Doris H. Maier: That was given on August the 7th.

Then the petitioner -- well, we must also note this point that at the time of trial in this case, petitioner took the stand and testified.

His statement at that time was virtually identical, his testimonies at that time with the contents of the statements made to Mr. Travers and to the officers.

Justice William J. Brennan: Well, of course that would -- that doesn't aid as much in the question whether they were properly introduce talking against them, doesn't it?

Ms Doris H. Maier: No, Your Honor but petitioner had full opportunity prior to trial to review his statements and also to hear the tape recording, went to Mr. Travers because it was avoided him prior to trial.

Justice William J. Brennan: Well even, does cover, doesn't it?

Ms Doris H. Maier: We would say that in this case, we differentiated from Watts versus Indiana, Leyra versus Denno and all the others in the ground that we do not have a situation of a defendant of a minority, read -- race kept incommunicado or threatened with physical violence.

There is no question raised that are mapped violence or fought.

We submit that this record shows that the petitioner asked for an attorney.

It shows no affirmative act of the police in refusing to permit an attorney to see him.

There was no evidence that an attorney was turned away.

It is petitioner's statement that I told him I wanted to get me an attorney, through the record, page 382, that they asked for one and ten times.

On page 354 and 355 of this record, it shows that petitioner's brother was attempting to secure counsel for him.

And we submit that this case is even a stronger case that the police acted properly, then Cicenia versus Lagay or Crooker versus California.

Under the Due Process Clause of the Fourteenth Amendment, there is no requirement that the police refrain from questioning a suspect until he secures an attorney.

Such policy would be a detriment to the innocent.

It would require the police to keep these people until such time as they had an attorney prior to being -- the individuals being able explain satisfactorily to the police and to obtain their release.

Also if a particular suspect were innocent, he might never to less be able to avoid the police a valuable clue to the guilty culprit which delay might render unavailable.

We submit that the record in this particular case does not show that the petitioner was questioned by continuous relays of officers until he confessed.

On the contrary, his alleged incriminating statements were given to his own accord to Mr. Travers.

The tape recorded statement here attacked, was the same as the first one which is admittedly voluntarily given in neither these statements that this petitioner admit all of the elements of the offense.

He admitted various incriminating statements.

We say, therefore, that petitioner's will to resist in entire confession was certain not broken at that point because at all times, petitioner did not admit each and all of the elements of the offense.

And we maintain that in the light of the entire records in this case that the State of California has not denied petitioner that due process of law that were required reversal by this Court under the Fourteenth Amendment.

Thank you.

Chief Justice Earl Warren: Ms. Asher.

Rebuttal of Rosalie S. Asher

Ms Rosalie S. Asher: The Court permission Mr. Chief Justice and may it please the Court.

I have just one or two very brief things to say in reply tonight.

Chief Justice Earl Warren: Yes, take your time.

Ms Rosalie S. Asher: Thank you sir.

My worthy opponent and I are agreed on the issues here before this Court and they need not to further be discussed.

It resolves itself into perhaps a rather simple, factual question.

However, I do wish to apologize for the statement I made this morning to secure from colleague as to the time of arraignment with regard to the statement.

I don't wish to get involved in this arraignment thing again but counsel and I were thinking of arraignment in the Superior Court and that would explain the wrong -- factually incorrect statement I made.

I think it begs the question to say that there is no affirmative act by the police to show him.

It's true they have no duty to provide a man with a lawyer.

An indigent is afforded a lawyer by the courts of California in the courts.

However, we do maintain that if a man in police custody, unable accepting with the indulgence of the police to contact counsel, asks to do so, then this is his right.

I have rather briefly reviewed the record being at the same disadvantage as Mrs.Maier and I having been at the trial of the case.

However, I don't find that record so clearly shows that this matter regarding counsel in actually a statement to Travers, the tape recorded statement appearing at page 201.

Travers says, the question, “Well, that's about all I can there, when you get your attorney.”

I don't know who your attorney is.

What was that fellow's name?

Answer, “I was trying to get (Inaudible) as it appears in the record.

(Inaudible)

"Yes."

San Jose."

"Yes."

San Jose is the question.

"Yes."

And then Travers says, “There is nothing we can do.

All we can do is what your request to the company, going back again to the question of insurance."

Then at the section with which Mrs. Maier referred to regarding the testimony of the -- I take it this is -- yes, this is the defendant's brother's testimony at page 354 and 355.

We are handicapped here by again the limited education of both defendant and his brother because the question was put to him, to the brother on cross examination by the prosecution.

"You have been in this particular matter.

Has been associated with your brother trying to help him out in your defense have you not?”

Answer, “In his defense, I just sat and heard it the same as anybody else.”

Question, "Well, you have conferred with him at various times over in the jail working out matters of his defense, didn't you?”

Answer, “Well, I just conceded for his lawyer.”

Now, I submitted, he probably -- I would assume he meant but still the time of this intercession does not appear from the statement although the brother goes on to testify, “Yes, we discussed about my other brother.

We talked about that a whole lot down in the jail."

Oh yes, the question was asked this morning as to the reference, in the record to actually request for counsel and that appears as is mentioned in our opening brief at page -- in the record, pages 382 and 436.

I think the later statement -- the statement made to police officers, after the statement made to Travers actually is a bit beyond the orbit of the question here.

Attention should be focused it seems to me on this one question.

Did actually, at any time before his interview with Travers tells the story that he then told and the answer is that he did not.

This was the first time that he had admitted coming in -- coming to the scene in possession of the gun.

The affect of the -- this whole tape being played to the jury heard by their ears, I think cannot be minimized.

If nothing else but for this tape which we still perfectly maintain was the result of coercion in a manner argued this morning.

If defendant had not been acquitted outright, there is a reasonable possibility I think that he would have received a lesser penalty.

California as so many other States has varying degree of homicide and but for the damning tape confession, it -- I think cannot be said be on certainty that he might not have been found guilty of manslaughter or of second degree murder or indeed if he were still found guilty of first degree murder.

But for the fact that this tape having been played, it will might be that the jury would have brought in a recommendation with leniency as in this case, they did not do it.

Chief Justice Earl Warren: Mr. Travers, I will -- and I -- I corrected and my recollection that some place in the record, it's stated that the petitioner's counsel argued to the jury that if this statement to Travers had not been put in by the prosecution, he would've put it in himself?

Ms Rosalie S. Asher: Mr. Chief Justice, that does appear in the argument.

We have answered that in our reply brief.

Chief Justice Earl Warren: If you have it.

Ms Rosalie S. Asher: Our contention is that he has no choice.

That this was just a matter of defense strategy, virtually imposed upon him by the methods of the prosecution.

Chief Justice Earl Warren: I see.

Ms Rosalie S. Asher: And I would like to further point out because there maybe some further confusions in the record.

The record will show that as the arraignment in the Superior Court, the defendant was represented by Mr. King, however, that is not this Mr. King.

Mr. Joseph R. King represented him at the time of the trial, Mr. Albert King, my associate's brother is the one mentioned at the Superior Court arraignment.

Chief Justice Earl Warren: Very well.

Thank you.